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USMC | DRB | 2010_Marine | MD1001920
Original file (MD1001920.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20100727
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP)       19960515 - 19960521     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19960522     Age at Enlistment:
Period of E nlistment : Years Months
Date of Discharge: 19980521      H ighest Rank:
Length of Service : Y ea r M on ths 23 D a ys
Education Level:        AFQT: 34
MOS: 0311
Proficiency/Conduct M arks (# of occasions): /                   Fitness R eports:

Awards and Decorations ( per DD 214):      SSDR

Periods of CONF : NFIR

NJP: 1

- 19980225 :      Article (Absence without leave), 2 specifications
         Specification 1: UA, 19980105 - 19980106 , 1 day
         Specification 2: UA, 19980204 - 19980213, 9 days
          Article 90 (Assaulting or willfully disobeying a superior commissioned officer , disobeyed battalion commander by exceeding liberty radius )
         Article 107 (False official statement , with intent to deceive, signed special liberty chit and then exceeded the 300 mile radius limitations )
         Awarded: RIR FOP CCU 30 days Suspended: RIR Suspension v acated 19980227

SCM: 2

- 19980304 :       Art icle 92 (Failure to obey order or regulation), 2 specifications
         Sentence : RIR FOP CONF 30 days (19980304 - 19980317, 24 days)

- 19980514:      Article 86 (A bsence without leave , UA, 19980404 - 19980501, 2 7 days )
         Article 134 ( Breaking restriction, 19980404)
         Sentence: FOP CONF 30 days (19980514 - 19980521, 8 days)

SPCM:

CC:




Retention Warning Counseling : 2

- 19980226 :      For absence without leave from 19980105 - 19960106, did with intent to deceive signed a special liberty chit and then went on liberty outside the 300 mile liberty chit radius disobey ing his battalion commander by exceeding those liberty limits .

- 19980316 :       For frequent pattern of misconduct .

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

          “UNDER OTHER THAN HONORABLE CONDITIONS”
 “MISCONDUCT ”
“(97) 980514-980521; (27) 980404-980430; (24) 980304-980327; (9) 980204-980212; (1) 980105”
The NDRB will recommend to the Commandant of the Marine Corps that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed

 Related to Military Service:
         DD 214:            Service/ Medical Record:            Other Records:   

Related to Post-Service Period:
         Employment:               Finances:                 Education/Training:     
         Health/Medical Records:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT , of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 January 1997 until 31 August 2001.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.       The Applicant wants to go into law enforcement .
2.       The Applicant contends his medical condition was a mitigating factor in his misconduct.
3 .        The Applicant contends his discharged is focused on an isolated incident in two years of service.
 4.       Post-service.

Decision

Date: 20 1 1 1104            Location: Washington D.C .         R epresentation : NONE

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al a ffairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included 6105 counseling warnings, for o f the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 2 specifications ), Article 90 (Assaulting or willfully disobeying a superior commissioned officer) , and Article 107 (False official statement) , and for of the UCMJ: Article 86 (Absence without leave), Article 92 (Failure to obey order or regulation, 2 specifications), and Article 134 (Breaking restriction ) . Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of a dministrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Nondecisional) The Applicant seeks to become a police officer. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the proprie ty and equity of the discharge.

: (Decisional) ( ) . The Applican t contends undiagnosed A ttention Deficit/Hyperactivity Disorder (A DHD ) was a mitigating factor in his misconduct. The Applicant submitted medical documentation showing he had been treated for ADHD since childhood. The NDRB recognizes the Applicant may have been suffering from the effects of ADHD. However, there is no indication in the record the Applicant was so affected by his mental condition that he was unable to abide by Marine Corps rules and regulations. In particular, the NDRB does not see how having ADHD would cause the Applicant to go UA for 1, 9, and 27 days and also make false official statements. The Applicant’s record contained numerous serious offenses that could have resulted in confinement and a punitive discharge if adjudicated at special court-martial. The NDRB determined his command was lenient in pursuing administrative separation rather than more punitive avenues. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharged is focused on an isolated incident in two years of service. D espite a service member’s prior record of service , certain serious offenses warrant separation from the in order to maintain proper order and discipline. Violation of Article s 90, 92 , and 107 warrant processing for administrative separation regardless of grade or time in service. This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The Applicant displayed a clear pattern of misconduct with numerous serious offenses . He was not discharged for a single incident; he was discharged for a pattern of misconduct. However, his command did not pursue a punitive di scharge but opted instead for the more lenient administrative discharge. The NDRB determined an upgrade would be inappropriate.



: (Decisional) ( ) . The Applicant submitted character references and documentation substantiating employment as a firefighter and work in Iraq as a contractor. While the Applicant appears to have made great strides since discharge, hi s post-service documentation efforts need to be more encompassing. The Applicant could have provided documentation as specified in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post - s ervice conduct establishes a reason to change the characterization or narrative reason. Due to the limited documentation provided and the serious nature of the Applicant’s repeated misconduct, an upgrade would be inappropriate.

Additionally, the Applicant stated he was awarded a Good Conduct Medal. This is incorrect. To be awarded a Good Conduct Medal, a Marine must serve for three consecutive years without misconduct. In the Applicant’s less than two years in the Marine Corps, he received two retention counseling warnings and was punished at one NJP and two summary courts-martial. The confusion likely arose from Block 18 on the Applicant’s DD Form 214, which states, “Good Conduct Medal commences 980521.” This statement refers to his last punishment and the resetting of the three-year counter for the Good Conduct Medal.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. There are veterans organizations such as the American Legion and the Disable d American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.
Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.
Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

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